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STEPAL made the following submission
Question 12 (a)
Should requirements for pre-application consultation with
communities be enhanced?
Answer:
Yes
Please explain your answer:
This could avoid some of the horrendous fallout when local people's
views are not taken into account and the only recourse for them is
Judicial Review - see below.
As an environmental organisation recently involved in a Judicial
Review concerning a planning application which was judged by the
court as being unlawful and was quashed, we have experience which is
directly relevant to the issue of a "third party" or "equal" rights
of appeal. While we generally support the intention of the
consultation document to engage communities more effectively at an
earlier stage in the planning process, we have significant problems
with the view that communities, and community bodies should have no
right of appeal to the DPEA in all circumstances.
The only remedy currently available to
individuals and community groups where a planning decision is made
which is perceived to be faulty, is to embark on a Judicial Review.
Such a review is very costly and can take two years or more for the
process to be completed. Even with a protected expenses order, the
cost to the applicant can be £100,000, and more if the judicial
appeal is lost. Justice at this cost is no justice at all. When bad
planning decisions are imposed on an area with limited resources,
such as some deprived areas, the route to justice becomes even more
difficult.
The Aarhus Convention provides for "affordable
access to justice" for individuals and community bodies opposing
decisions which affect the environment, but this is not delivered in
practice as the above costs (which relate to an environmental
appeal) clearly demonstrate.
A major issue of the Judicial Review procedure
is that the merits of the planning decision cannot be considered by
the court, but only the procedure by which it was arrived at. This
is in direct contrast to the DPEA appeal process where compliance
with the development plan is the main consideration.
There is a convincing narrative which supports
a view that the current situation does not accord with the
provisions of the EU/UN Conventions of Human Rights in relation to
access to an independent and fair appeal process. It also appears to
be in contravention of the Aarhus Convention when applied to
environmental appeals.
While we believe that there should, in certain
defined situations, be a limited right of appeal for community
groups and individuals through the DPEA process, we do not see such
appeals as likely to become numerous or vexatious if sufficient
safeguards are built in. Neither do we see these as inhibiting early
decision-making - the judicial appeal process takes much longer.
Having successfully challenged a local
authority in respect of its decision for one of its own planning
applications in the Court of Session, we are acutely aware of the
problems associated with this process. The objectivity, and
separation of the interests of the authority as applicant and as
planning authority was a key issue in the judgement arrived at by
the Inner House to quash the planning permission for a major school
project in Green Belt. The cost to the Council of resourcing its
defence was not inconsiderable. The delay of almost four years in
starting a much needed school was another outcome which neither
party to the action would have wished for. Yet this was the only
avenue possible to secure an objective judgment for a proposal which
if implemented, would have had serious adverse environmental and
social effects lasting for half a century or more.
We would not propose a right of appeal to the
DPEA in all circumstances as is currently available to applicants as
of right, but a right for community individuals and groups in the
following circumstances:
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When the local authority is both applicant and
decision-maker and there is a substantial body of objections,
including objections from community organisationsand the community
council for the area. "Substantial body" would require to be
defined.
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When the proposal is significantly contrary to
the local plan and there is a substantial body of objections as
noted above.
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Where it can be demonstrated that serious
procedural irregularities or failures have taken place in the
process, including failure of correct notifications, and as above,
there is a substantial body of objections.
Without such a process being available, the
community becomes devalued in the planning process as its interests
are seen to be less important than the aspirations and plans of
developers. This devaluation is evident when planners perceive that
meeting developer interests is more important than community
concerns, if only because they are less accountable to communities
because developers have have a virtually unrestricted and no cost
access to a planning appeal process if they are displeased with a
planning decision.
Finally, we would submit that there is not
sufficient confidence in the consistency of decisions made by local
review bodies to conclude that this is viable a way of removing
appeal pressures from the DPEA. Restricting the grounds of appeal
and/or introducing a fee structure for applicant's appeals would be
more effective in achieving this objective.
Evaluation
Please help us improve our consultations by answering the
questions below. (Responses to the evaluation will not be
published.)
Matrix 1 - How satisfied were you with this
consultation?:
Neither satisfied nor dissatisfied
Please enter comments here:
Our response has been limited to the area with which we have been
concerned over the last three years and about we know most, and we
feel therefore that our experience could be valuable in examining
the particular issue of local participation in major planning
decisions. The planning application which we took to Judicial Review
was turned down by the local area planning committee and had this
decision stood, the whole ensuing process would not have been
necessary, saving not only a lot of time but also a lot of money.
Matrix 1 - How would you rate your
satisfaction with using this platform (Citizen Space) to respond to
this consultation?:
Very satisfied
Please enter comments here:
We trust that our comments will be taken into account in that we
speak from hard experience.
Sandra Thomson
on behalf of The St Andrews Environmental Protection Association
4 April 2017
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